Michael Reed Dorrough v. M. RUFF, Chairperson, Office of Correctional Safety

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL REED DORROUGH,
Plaintiff - Appellant,
v.
M. RUFF, Chairperson, Office of
Correctional Safety; EVERETT W.
FISCHER, Committee Member of the
Office of Correctional Safety; T. L.
ROSENKRAUS; T. TURMEZEI; C.
EUBANKS, Instituitonal Gang
Investigator; J. STOCKER; J. GENTRY,
Defendants - Appellees.
No. 11-17875
D.C. No. 1:08-cv-01366-LJO-
GBC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted January 14, 2014
San Francisco, California
FILED
JAN 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: WALLACE and BYBEE, Circuit Judges, and RESTANI, Judge.**
Michael Reed Dorrough filed this action under 42 U.S.C. § 1983, alleging
that his right to due process under the Fourteenth Amendment was violated when
prison officials re-validated him as a member of the Black Guerilla Family gang.
Dorrough appeals from the district court’s judgment dismissing his Second
Amended Complaint (“SAC”). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
“Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed
de novo. The facts alleged in a complaint are to be taken as true and must plausibly
give rise to an entitlement to relief.” Dougherty v. City of Covina, 654 F.3d 892,
897 (9th Cir. 2011) (internal quotation marks and citations omitted). Mere legal
conclusions, however, “are not entitled to the assumption of truth.” Id. (internal
quotation marks and citation omitted). In addition, we may affirm the district
court’s order of dismissal “on any ground supported by the record.” Sams v.
Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013).
The documents in Dorrough’s re-validation package were properly before
the district court and are properly before us now. Although these documents were
** The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
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not physically attached to the SAC, Dorrough does not contest their authenticity
and the SAC necessarily relies on them. Id. Furthermore, the district court took
judicial notice of these documents, and Dorrough does not appeal the district
court’s decision to do so. As a result, Dorrough has waived any argument to that
effect. See Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 858 n.4
(9th Cir. 1999) (“Arguments not raised in opening brief are waived.”).
The prison officials complied with the requirements that they provide
Dorrough with “some notice of the charges against him and an opportunity to
present his views to the prison official charged with deciding whether to transfer
him to administrative segregation.” See Bruce v. Ylst, 351 F.3d 1283, 1287 (9th
Cir. 2003) (internal quotation marks and citation omitted). As a result, the sole
issue is whether there was “some evidence” to support Dorrough’s re-validation.
Whether there was “some evidence” to support Dorrough’s re-validation is a
question of law. See Castro v. Terhune, 712 F.3d 1304, 1314 (9th Cir. 2013).
“Some evidence” review requires us to ask only whether
there is any evidence in the record that could support the
conclusion. This test is minimally stringent. Accordingly,
we do not examine the entire record, independently assess
witness credibility, or reweigh the evidence. Evidence only
must bear some indicia of reliability to be considered
“some evidence.” Moreover, evidence may qualify as
“some evidence,” even if it does not logically preclude[ ]
any conclusion but the one reached.
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Id. (alteration in original) (internal quotation marks and citations omitted).
The district court properly dismissed Dorrough’s complaint because more
than one of the source items in his re-validation package bear “some indicia of
reliability.” For example, we have held that “[p]roof that a[] [confidential]
informant previously supplied reliable information is sufficient” to establish
reliability. Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th Cir. 1987). Here, the
prison officials indicated that both the March 30, 2006, and April 27, 2006,
confidential informants were considered reliable because “[p]art of the information
provided by the source(s) ha[d] already proven to be true.” These confidential
informants were also considered reliable because the “source[s] incriminated
[themselves] in a criminal activity at the time of providing the information.” Either
of these bases is sufficient indicia of reliability under the minimally-stringent
“some evidence” standard. Therefore, “some evidence” supported Dorrough’s re-
validation as a BGF gang member, and Dorrough was not denied due process as a
matter of law.
Finally, even assuming the district court failed to evaluate the documents in
the re-validation package, it would be “pointless” to remand the case because the
record is “adequately developed such that no rational jury (or jurist) could find for
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[Dorrough].” Castro, 712 F.3d at 1314 (internal quotation marks and citation
omitted).
AFFIRMED.
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